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UPDATE ON RECENT APPELLATE DEVELOPMENTS

[Posted September 2, 2016] The Supreme Court of Virginia hasn’t released any decisions in the past couple of weeks, so let’s poke around and see what’s been happening elsewhere in the appellate sector lately.

New filing inHowell v. McAuliffe

By now you’ve likely seen that the legislative petitioners who succeeded in getting a very rare writ of mandamus last month have followed that up with a show-cause petition. (I offer my thanks to Peter Vieth of Virginia LawyersWeekly for the link.) They ask the Supreme Court to hold the Governor and several of his high-ranking officials in contempt, based on the Governor’s issuance of 13,000 individual orders restoring civil rights to ex-felons.

[A quick side note: I recognize that the word ex-felon is itself susceptible of political overtones. For some linguistic purists and law-and-order advocates, there’s only one way to become an ex-felon: you have to have your conviction overturned. For those folks, once you’re convicted of a felony, you’re a felon for life. For brevity’s sake, I’m using it in the sense that’s more common nowadays, although etymologically less secure: a person who has completed his sentence for a felony and has rejoined society.]

The theme of the motion is that the Governor has openly expressed disagreement with – and contempt for? – the Supreme Court’s writ. His public statements have provided plenty of fuel for this fire, and the motion contains probably every such comment that the petitioners could gather. The motion asserts that the individual orders – which were apparently robo-signed – still didn’t meet the Constitution’s requirements, since (among other things) there was apparently no individual consideration given to them. The only criteria appeared to have been status as an ex-felon and a previous registration to vote before the writ was issued.

The respondents haven’t filed anything in answer, as far as I know, so I know better than to prejudge the outcome. I do note one likely difficulty for the petitioners if they truly want to have the Governor (as contrasted with his senior officials) cited for contempt: the Supreme Court was careful not to issue the writ against the Governor. All of the directives at the end of the chief justice’s July 22 opinion pertained to the officials, such as the Board of Elections and the State Registrar. It’ll be some trick for them to show that the Governor violated an order that wasn’t directed to him.

In one sense, this motion is far more explosive than the original petition for a writ of mandamus. It’s one thing to ask a court to rule that a given act, legislative or executive, is unconstitutional. Courts entertain requests like that all the time, although most of them aren’t as high-profile as this one was.

But asking a court to punish the Governor is, in comparison, thermonuclear. The motion doesn’t specify any particular punishment that the petitioners seek; it merely asks that the respondents be directed to show cause why they should not be held be held in contempt. I infer that this is civil contempt, since they allege that the respondents have failed to obey the provisions of a court order. (I will hastily add that the boundary between civil and criminal contempt is often murky.) The usual remedy for a finding of civil contempt is that the offending party is jailed until he complies with the order.

Now you see why it’s thermonuclear. We can safely say that one potential objective of this motion is an order that the Governor be jailed until he submits. I cannot in my wildest dreams imagine that that scenario will actually come to pass, but it’s readily deducible from the motion. The Governor may be privileged from arrest for such matters; I haven’t researched that and I don’t propose to stop and do it now. But this motion was understandably attention-getting around here.

Expect matters to move apace; the legislators are hoping for a resolution well before the November 8 election, so they can stop all those “felons” from voting.

Yet another sign of change at the SCV

I answer a lot of questions from lawyers about appeals. Some of the more common ones relate to the time it takes to get a ruling after a writ-panel argument (I answer that the usual time is between three business days and six weeks), queries about which justices will be on an upcoming writ panel (you’ll find out when you check in), and what to put into a petition for rehearing (a chicken-soup recipe will do if you think it’ll get you a writ; there are zero actual requirements).

This week a lawyer contacted me to ask if the order he’d just received was unusual. After looking into his appeal, I’d say that “unusual” is an understatement, by two or three orders of magnitude. This is the latest exhibit in support of the proposition that the Supreme Court of Virginia has undergone huge changes in the past few years.

The underlying litigation was a claim by a municipal employee against the city that hired him, seeking certain benefits. The circuit court ruled in favor of the employee, and the judge entered the final order on Friday, March 25. The clerk of the circuit court received and datestamped the order on Monday, March 28.

The city’s lawyer timely filed a notice of appeal in which he referred to the March 25 final order. Given that date, the petition for appeal was due June 27 (June 25 was a Saturday). According to the pleadings in the case, the lawyer sent his petition for appeal to a Richmond printing company on Friday, June 24.

If you’re a seasoned appellate practitioner, I want you to get a hold of yourself before you read the next sentence. Ready? The printer filed the petition on Tuesday, June 28. We can’t know what communication passed between the lawyer and the printer; we can’t know if one or both incorrectly relied on the March 28 datestamp. For whatever reason, the brief was a day late.

The three-month deadline for a petition for appeal is one of those drop-dead deadlines in the books. So saith Rule 5:5, and it’s based on a statute, so the justices can’t change it even if they want to.

Once upon a time, back in the 1960s, lawyers evidently looked at the deadline with something akin to disdain; they routinely filed late petitions and got retroactive leave to do so. By 1970, the justices had had enough; in a published opinion released that year, they announced to bench and bar that thenceforth they would grant relief only in appeals involving constitutional claims.

All of this spells doom for the city’s petition. Sure, the court can grant extensions “for good cause,” but that phrase means something vastly different in appellate courts than it does in trial courts. Try getting a good-cause exception to the contemporaneous-objection rule sometime and see how that goes. It generally requires proof of extraordinary circumstances that are wholly beyond the litigant’s control. In my experience, a litigant has always been held responsible for the actions of his chosen attorney, and by extension, his printing consultant. And remember that 1970 decision? The city’s appeal doesn’t raise a constitutional issue.

Surprise! The justices granted the city’s “Motion to Retroactively Extend Time for Filing Petition for Appeal” anyway. As is customary with procedural orders, there’s no explanation given. Note that this doesn’t mean that the city will get a writ; it still has to overcome the formidable hurdle of the writ process, where its odds of success are 15%. But it’s still in the game.

I’ve corresponded with some of my appellate pals about this development, and most of them had the same reaction as I did: we read it with dropped jaws. None of us can come up with a satisfactory explanation why the court has modified its previous uniform practice.

There are a few possible takeaways from this, but the most important piece of advice I can give you is this: File your petition on time! (Better yet, do what I do, and file before the deadline day. You’ll sleep better.) Or as this guy would say in this situation, “Pay no attention to the order behind the curtain.” Any lawyer who figures he can regard the three-month deadline as flexible is playing with some serious fire. Although the justices evidently didn’t adhere to it on this occasion, that 1970 decision (211 Va. 1, if you want to check it out) is still on the books.

If your client has an important constitutional or civil-rights case, it’s fine to be a test case. But you should never, ever put yourself in a position where you’re a test case on procedural default and waiver.

Symposium on an eight-member SCOTUS

Today marks 170 days since the President nominated Judge Merrick Garland for the Supreme Court seat formerly occupied by Justice Scalia. Judge Garland has now waited longer than any other nominee in our nation’s history, just to get a hearing; he passed the former record-holder, Justice Louis Brandeis, a month and a half ago.

The terrific website SCOTUSblog is hosting a symposium to address this intriguing topic:

If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.

The conventional wisdom may well be true for the Court as a whole. But what does it mean for some of the high-profile issues – affirmative action, gun control, reproductive rights, and the death penalty, to name just a few – on which the Court has ruled or may rule in the years to come?

The symposium began earlier this week, and there have been some terrific posts on various case areas from top-notch commentators. If Supreme Court watching is your thing, you’ll want to dig in.

One last point: as you’ll recall, we don’t do politics here at VANA, reflecting my own views as a philosophical moderate and a political independent. But as an appellate lawyer, I firmly believe that the Senate should give Judge Garland a hearing – indeed, it should have done so long ago. The Senate Republicans’ theory that the judicial-confirmation process should stop in the last year of a president’s term finds no support in the Constitution. It’s nothing but a rationalization — an unsound and blatantly political one at that — for their hope that a Republican might make the appointment instead of allowing a Democratic President to make the choice. That isn’t the way our government is supposed to work; these supposedly august men and women are holding the Court and America hostage in an attempt to get what they want.